Notes LAW OF Taxation PDF

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LAW OF TAXATIONUNIT IGENERAL####### CONCEPT OF TAX - NATURE AND CHARACTERISTICS OF DIFFERENT####### TYPES OF TAXES - DIRECT AND INDIRECT TAXES - DISTINCTION BETWEEN####### TAX, FEES & CESS - TAX EVASION, TAX PLANNING & TAX AVOIDANCE -####### RETROSPECTIVE TAXATION - FEDERAL BASE OF T...

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LAW OF TAXATION UNIT I GENERAL CONCEPT OF TAX - NATURE AND CHARACTERISTICS OF DIFFERENT TYPES OF TAXES - DIRECT AND INDIRECT TAXES - DISTINCTION BETWEEN TAX, FEES & CESS - TAX EVASION, TAX PLANNING & TAX AVOIDANCE RETROSPECTIVE TAXATION - FEDERAL BASE OF TAXING POWER - POWER OF TAXATION UNDER THE CONSTITUTION, IMMUNITY OF STATE AGENCIES/INSTRUMENTALITIES - FUNDAMENTAL RIGHTS AND THE POWER OF TAXATION - COMMERCE CLAUSE, INTER STATE COMMERCE AND TAXATION, SCOPE OF TAXING POWERS OF PARLIAMENT, DELEGATION OF TAXING POWER TO STATE LEGISLATURES AND LOCAL BODIES.

A1. INTRODUCTION Before one can embark on a study of the law of income-tax, it is absolutely vital to understand some of the expressions found under the Income-tax Act, 1961. The purpose of this Chapter is to enable the students to comprehend basic expressions. Therefore, all such basic terms are explained and suitable illustrations are provided to define their meaning and scope.

1. OBJECTIVES         

After going through this lesson you should be able to understand: Importance and History of Income Tax in India Meaning of Person and Assessee Definitions of various Terms used in Income Tax What is regarded as ‘Income’ under the Income-tax Act What is ‘Gross Total Income’ Concept of Assessment Year and Previous Year How to charge tax on income Income-tax rates

2. Importance , History, Present Act IMPORATANCE The Taxation Structure of the country can play a very important role in the working of our economy. Some time back the emphasis was on higher rates of

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Tax and more incentives. But recently, the emphasis has shifted to Decrease in rates of taxes and withdrawal of incentives. While designing the Taxation structure it has to be seen that it is in conformity with our economic and social objectives. It should not impair the incentives to personal savings and investment flow and on the other hand it should not result into decrease in revenue for the State. In our present day economy structure Income Tax plays a vital role as a source of Revenue and a measure of removal economic disparity. Our Taxation structure provides for Two types of Taxes --- DIRECT and INDIRECT ; Income Tax , Wealth Tax and Gift Tax are Direct Taxes whereas Sales Tax and Excise Duties are Indirect Taxes. HISTORY The Income Tax was introduced in India for the first time in 1860 by British rulers following the mutiny of 1857. The period between 1860 and 1886 was a period of experiments in the context of Income Tax. This period ended in 1886 when first Income Tax Act came into existence. The pattern laid down in it for levying of Tax continues to operate even to-day though in some changed form. In 1918, another Act- Income Tax Act, 1918 was passed but it was short lived and was replaced by Income Tax Act, 1922 and it remained in existence and operation till 31st. March, 1961. PRESENT ACT On the recommendation of Law Commission & Direct Taxes Enquiry Committee and in consultation with Law Ministry a Bill was framed. This Bill was referred to a select committee and finally passed in Sept. 1961. This Act came into force from 1st.April 1962 in whole of the country. Income Tax Act, 1961 is a comprehensive Act and consists of 298 Sections. Sub-Sections running into thousands Schedules, Rules, Sub-Rules, etc. and is supported by other Acts and Rules. This Act has been amended by several amending Acts since 1961. The Annual Finance Bills presented to Parliament along with Budget make farreaching amendments in this Act every year.

3.

MEANING OF “TAX MANAGEMENT”

“… A Business who stays aloof of tax matters cannot remain competitive. Tax laws are an economic reality in the Business world. A Tax Dollar is just as real one derived from other source.” Tax Management is now an integral part of business management. It involves not only due compliance of law in timely and regular manner, but also arranging the affairs in such a manner that it reduces the tax liability burden. Specifics are :

  

Filling of Return Maintenance of Accounts Getting the Accounts Audited. 2

  

Complying with the notices of Income Tax Department. Payment of Advance Tax Timely deduction of Tax at Source and its payment.

4. PERSON [ Section 2(31) ] The word “Person” is a very wide term and embraces in itself the following :  

 



 

Individual : It refers to a natural human being whether Male or Female , Minor or Major. Hindu Undivided Family (HUF) : It is a relationship created due to operation of Hindu Law. The Manager of HUF is called “ Karta” and its member are called ‘Coparceners’. Company : It is an artificial person registered under Indian Companies Act 1956 or any other Law. Firm : It is an entity which comes into existence as a result of partnership agreement. The Income Tax accepts only these entities as Firms which are accessed as Firms under Section 184 of the Act. Association of Persons (AOP) or Body of Individuals (BOI) : Co-operative societies, MARKFED, NAFED, etc are the example of such persons. When persons combine together to carry on a joint enterprise and they do not constitute partnership under the ambit of law, they are assessable as an Association of Persons. An A.O.P. can have firms, companies, associations and individuals as its members. A Body of Individual ( B.O.I.) cannot have non-individuals as its members. Only natural human being can be members of a Body of Individuals. Local Authority : Municipality, Panchayat, Cantonment Board, Port Trust etc. are called Local Authority. Artificial Judicial Person : Statutory Corporations like Life Insurance Corporation, a University etc. are called Artificial Judicial Persons.

These are seven categories of person chargeable to tax under the Act. The aforesaid definition is inclusive and not exhaustive . Therefore, any person, not falling in the abovementioned seven categories, may still fall in the four corners of the term “Person” and accordingly may be liable to tax under Sec.4. Example: Determine the status of the following : 1. 2. 3. 4. 5. 6. 7. 8.

Delhi University Microsoft Ltd. Delhi Municipal Corporation Swayam Education Pvt. Ltd. Axsis Bank Limited. ABC Group Housing Co-operative Society. DC & Co., firm of Mr. Dust and Mr. Clean A joint family of Mr.Dirty, Mrs. Dirty and their sons Mr. Dust and Mr. Clean 3

9. X and Y who are legal heirs of Z ( Z died in 1995 and X and Y carry on his business without entering into partnership). Solutions : 1. 2. 3. 4. 5. 6. 7. 8. 9.

Artificial Judicial Person a Company a local authority a company a company an association of person a firm ; a Hindu Undivided Family an association of persons.

5. Assessee [ Section 2(7)] Assessee means a person by whom any tax or any other sum of money is payable under this Act and includes the following: (ii) A person who is deemed to be an assessee under any provisions of this Act i.e. a person who is a. for the assessment of treated as an his income or the assessee. This would income of any other include the legal person in respect of representative of a which he is assessable; deceased person or or the legal guardian of b. to determine the loss minor if minor is sustained by him or by taxable separately. such other person; or c. to determine the amount of refund due to him or to such other person.

(i) Every person in respect of whom any proceeding under the Income-tax Act has been taken:

(iii) Every person who is deemed to be an assessee in default under any provisions of this Act. A person is said to be an assessee in default if he fails to comply with the duties imposed upon him under the Income-tax Act. For example: a person, paying interest to another person, is responsible for deducting tax at source on this amount and to deposit the tax with the Government. If he fails in either of these duties i.e., if he does not deduct the tax, or deducts the tax but does not deposit it with the Government, he shall be deemed to be an assessee in default.

1. Every assessee is a 'person', but every person need not be an 'assessee'. For example, X, an individual has earned total income of Rs. 2,40,000 in the previous year. He is a person but not an assessee because his total

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income is less than the maximum exemption limit of Rs. 2,50,000 and no tax or any other sum is due from him. 2. A person may not have his own assessable income but may still be an assessee. For example, an assessee, who has earned an income of Rs. 1,45,000 in a previous year, fails to deduct the tax at source on salary paid by him, which he was required to do under the Act, shall be deemed to be an assessee in default. Although, he is not assessable in respect of his own income, as it is below the maximum exemption limit, but shall still be an assessee for not deducting the tax at source, which he was obliged to do. Example :  Income of Mr. You ( age : 30 years) is Rs. 1,45,000 for the assessment year 2018-19. he does not file his return of income because his income is not more than the amount of exempted slab. Income-Tax Department does not take any action against him. He is not an “assessee” because no tax or any other sum is due from him.  Income of Mr. Me ( age: 35 years) is Rs.1,60,000 for the assessment year 2018-19. He does not file his return of income. Since he is supposed to file his return of income ( income being more than exempted slab of Rs.1,50,000) . he is an “Assessee”.  Income of Mr. S ( age : 50 years) is Rs. 70,000 for the assessment year 2018-19. He files his return of income ( even if his taxable income is less than Rs.1,50,000 ). Assessment order is passed by the Assessing Office without any adjustment. Mr.S is an “ Assessee”.  Income of Mr. Ram ( age : 25 years) is less than Rs.1,50,000 for the assessment year 2009-10. He files his return of income to claim Refund of Tax deducted by XYZ Ltd. on interest paid to him. B is an “Assessee”.  Income of MR. Clean ( age : 30 years) is less than Rs.1,50,000 for the assessment year 1018-19. He does not file his return of income. During 2018-19 , he has paid salary of Rs.2,40,000 to an employee. Though he is supposed to deduct TDS (Tax deducted at Source ), yet due to ignorance of law, no tax deducted by him. In this case, Mr. Clean is an “assessee” as he has failed to deduct tax at source. This rule is applicable even if his own taxable income is below Rs.1,50,000.

6. Meaning Of “INCOME” [ Section 2(24) ] The Definition given u/s 2 (24) is inclusive and not exhaustive. According to English dictionary, the term “Income” means periodical monetary return coming in regularly from definite sources like one’s business, Land, Work, Investments etc.”. It’s nowhere mentioned that “Income” refers to only monetary return. It includes value of Benefits and Perquisites.

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The term “Income” includes not only what is received by using the property but also the amount saved by using it himself. Any thing which is convertible into income can be regarded as source of accrual of income. “ Income includes “ :  Profit and Gains : For instance, Profit generated by a businessman is taxable as “Income”.  Dividend : For instance, “Dividend” declared/paid by a company to a shareholders is taxable as “ income” in the hands of shareholders .  Voluntary contribution received by a Trust : In the hands of a Trust, income includes voluntary contributions received by it. This rule is applicable in the following cases.. o Such contribution is received by a trust created wholly or partly for charitable or religious purpose ; or o Such contribution is received by a scientific research association ; or o Such contribution is received by any fund or institution established for charitable purposes ; or o Such contribution is received by any university or other educational institutions or hospital. Example : ABC Trust is created for public charitable purposes. On Dec, 15, 2008 it receives a sum of Rs.2 Lakh as voluntary contribution from a business house . Rs. 2 Lakh would be included in the income of the Trust.  The value of any Perquisites or Profit in lieu of Salary taxable in the hand of employee. Example: Mr. You is employed by XYZ Ltd. Apart from Salary , he has been provided a Rent-Free House by the employer . the value of perquisites is respect of the Rent-Free House is taxable as “Income” in the hands of Mr. You..  Any Special Allowance or Benefit : All type of special allowance are given/allow to the assessee to meet the expenses exclusively, wholly and necessarily for the duties he performed for the office or employment is treated as “Income”. Example: Mr. You is employed by XYZ Ltd. He gets Rs.5,000 per month as conveyance allowance other than Salary .Rs. 5,000 per month is treated as “ Income”.  Value of any Benefit or Amenity, whether convertible into money or not.  Any Capital Gain taxable u/s 45 is treated as “Income” Example: Mr. You owns a House Property. On its transfer, he generates a Capital Profit of Rs.1,20,000. it is treated as “Income” even if it is Capital Profit.

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 Any winning from Lotteries (it included winning from prizes awarded) , Winning from Crossword Puzzles, winning from Races including Horse Race, winning from Card Games and other similar Games, winning from gambling or betting. Example: Mr. You wins a sum of Rs. 50,000 from gambling. Rs.50,000 is treated as “ Income” of Mr. You.  Any sum received by the assessee on account of his employer’s contributions to any Provident Fund, Superannuation Fund or any other Fund for the welfare of such employees in the business.  Amount exceeding Rs.50,000 by way of Gift.

FEATURES OF “INCOME’ The following features of income can help a person to understand the concept of income. 1. Definite Source : Income has been compared with a fruit of a tree or a crop from the field. Fruit comes from a tree and crop from fields. Thus the source of income is definite in both cases. The existence of a source for income is somewhat essential to bring a receipt under the charge of tax. 2. Income must come from Outside : No one can earn income from himself. There can be no income from transaction between head office and branch office. Contributions made by members for the mutual benefit and found surplus cannot be termed as income of such group. 3. Tainted Income : Income earned legally or illegally remains income and it will be taxed according to the provisions of the Act. Assessment of illegal income of a person does not grant him immunity from the applicability of the provisions of other Act. Any expenditure incurred to earn such illegal income is allowed to be deducted out of such income only. 4. Temporary or Permanent : Whether the income is permanent or temporary, it is immaterial from the tax point of view. 5. Voluntary Receipt : The receipts which do not arise from the exercise of a profession or business or do not amount to remuneration and are made for reasons purely of personal nature are not included in the scope of total income. 6. Dispute regarding the Title : In case a person is receiving some income but his title to such receipts is disputed, it will not free him from tax liability. The receipt of such income has to pay tax. 7. Income in Money or Money’s worth : The income may be in Cash or in kind. It is taxable in both cases.

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TAX TREATMENT OF “INCOME’ For the purposes of treatment of income for tax purposes it can be divided into 3 categories : A. Taxable Income : These incomes form part of total income and are fully taxable. These are treated u/s 14 to 69 of the Act. These are Salaries, Rent, Business Profits, Professional Gain, Capital Gain, Interest, Dividend, Winning from Lotteries, Races etc. B. Exempted Incomes : These incomes do not from part of total income either fully or partially . hence, No Tax is payable on such incomes. These incomes are given u/s 10(1) to 10(32) of the Act. C. Rebateable ( Tax Free) Incomes : These incomes form part of total income and are fully taxable. Tax is calculated on total income out of which a Rebate of Tax at average Rate is allowed . The Rebateable incomes given u/s 86 of the Act are :  Share of income received by a member of an association of persons provided the total income of such AOP is assessed to tax at the rates applicable to an individual.  Share of income received by a partner of a firm assessed as an association of persons (PFAOP) provided the total income of such PFAOP is assessed to tax at the rates applicable to an individual.

7. GROSS TOTAL INCOME (GTI) & TOTAL INCOME U/s 14 the term “Gross Total Income” [ GTI ] means aggregate of incomes computed under the following Five heads :     

Income Income Income Income Income

under under under under under

the the the the the

head head head head head

“Salaries” “ House Property” “Profit and Gains of Business or Profession”. “Capital Gain”. “ Other Sources”.

After aggregating income under various heads, losses are adjusted and the resultant figure is called “ Gross Total Income” [ GTI ] From Gross Total Income , Deductions u/s 80 are allowed. The resultant figure is called “Total Income “ on which Rates of Taxes are applied

8 ASSESSMENT YEAR [ Section 2 (9) ] “ Assessment Year” means the period of 12 months commencing on the 1st day of April every year. In India, the Govt. maintains its accounts for a period of 12 months i.e. 1st April to 31st March every year. As such it is known as Financial Year. The Income Tax

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department has also selected same year for its Assessment procedure. The Assessment Year is the Financial Year of the Govt. of India during which income a person relating to the relevant previous year is assessed to tax. Every person who is liable to pay tax under this Act, files Return of Income by prescribed dates. These Returns are processed by the Income Tax Department Officials and Officers. This processing is called Assessment. Under this Income Returned by the assessee is checked and verified. Tax is calculated and compared with the amount paid and assessment order is issued. The year in which whole of this process is under taken is called Assessment Year. At present the Assessment Year 2008-2009 ( 1-4-2018 to 31-3-2019) is going on. ExampleAssessment year 2018-19 which will commence on April 1, 2018, will end on March 31, 2019. Income of Previous Year of an assessee is taxed during the next following Assessment Year at the rates prescribed by the relevant Finance Act

9.

PREVIOUS YEAR [ Section 3 ]

As the word ‘Previous’ means ‘coming before’ , hence it can be simply said that the Previous Year is the Financial Year preceding the Assessment Year e.g. for Assessment Year 2008-2009 the Previous Year should be the Financial Year ending 31st March 2008.  Previous Year in case of a continuing Business : It is the Financial Year preceding the Assessment Year. As such for the assessment year 2008-2009, the Previous Year for continuing business is 20072008 i.e. 1-4-2007 to 31-3-2008.  Previous Year in case of newly set up Business : The Previous Year in case of newly started business shall be the period between commencement of business and 31st March next following . e.g. in case of a newly started business commencing its operations on Diwali 2007, the Previous Year in relation to Assessment Year 2008-2009. shall be the period between Diwali 2007 to 31 March 2008.  Previous Year in case of newly created source of income : In such case the Previous Year shall be the period between the day on which

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such source comes existence and 31st March next following. Sl. Income No. 1. 2.

Cash Credit

Secti Previous Year on [68]

Financial Year in which found to be entered.

Unexplained Investment [69]

Financial Year preceding the Assessment Year

3.

Unexplained Bullion, Cash, Jewelley

[69A]

...